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New Jersey Workers’ Compensation Fact Sheet

11.29.2020

Jones Jones LLC knows that workers’ compensation claims can be complex. In an industry bogged down by forms, statutes, and filings, we aim for efficiency in all we do. To that end, we wanted to make sure that you, our clients, had access to the most up-to-date pertinent information regarding New Jersey workers’ compensation.

Are you an examiner that is looking for a quick reference? Are you a risk manager overseeing New Jersey claims? Are you an employer addressing your first workers’ compensation case? Please look no further than the Jones Jones LLC New Jersey Workers’ Compensation Fact Sheet.

New Jersey Workers Compensation Fact Sheet 2022 edits

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Appellate Division Tosses Extraterritorial Medical Provider Claims

10.12.2020

The Appellate Division examined the jurisdiction of out of state medical provider claims that had fee disputes due medical procedures performed in New Jersey in the consolidated matters of Anesthesia Associates of Morristown PA v. Weinstein Supply Corporation and Surgicore of Jersey City v. Waldbaums. A-5033-18T4 and A-5718-18T4. In recent years, the Division of Workers’ Compensation has seen an increase in claims arising out of the 2012 Amendments to the Workers’ Compensation Act (WCA) which gave the Division of Workers’ Compensation exclusive jurisdiction over medical provider applications. The Amendment to N.J.S.A. 34:15-15 was silent on whether an out of state worker who was directed by a treating physician would be bound to the New Jersey underlying claim would apply its fee schedule.

The Appellate Division began its analysis of jurisdiction of such claims by reviewing the 2012 amendment and providing “plain meaning” to the statute. The court explained that medical provider claims could be brought under the WCA when the underlying workers’ compensation claim would have had jurisdiction in New Jersey. The court examined several important workers’ compensation cases but placed emphasis on its recent decision in Marconi v. United Airlines, 406 N.J. Super 330 (App. Div. 2019). Marconi outlines Larson’s on Jurisdiction six-factor test for jurisdiction. The factors 1) The place where the Injury occurred; 2) the place of the making of the contract; 3) the place where the employment relation exists ; 4) the place where the industry is localized; 5) place where the employee resides 6) the place whose statute the parties expressly adopted by contract. Applying this analysis, the Court determined that if an out of state workers’ compensation claim could not obtain jurisdiction within New Jersey, the contractual dispute for payment should also not be granted jurisdiction. The applicant would fail to have met personal jurisdiction in these matters.

The Court also declined the argument of both medical providers that these applications are contractual disputes. The court reasoned that the applicants failed to identify any contractual rate of reimbursement that existed between the medical provider and the employer, or the medical provider and the insurance carrier.

This decision is very important for defense practitioners as these claims have proven a challenge on the appropriate way to handle payment issues. Defense counsel should exercise caution when responding to medical provider applications and carefully examine any jurisdictional issues.

Is Your Law Firm Cyber Security Compliant?

10.04.2020

In 2018, the Department of Financial Services unveiled a comprehensive set of Cyber Security regulations in an effort to curtail growing threat posed to information and financial systems in today’s modern world. This new set of Regulations has significant reach as it not only affects institutions regulated by the Department of Financial Services who house nonpublic information like insurance carriers, but also the law firms those institutions partner with. The Regulations are comprehensive and are meant to provide a framework as to how your company to should maintain best-practices. The Regulations can be broken down into four (4) general areas: (1) Your policy, (2) Your program, (3) Annual Reporting and (4) Third Party Considerations.

Policy

As an insurance carrier in New York, you must have a Cybersecurity Program that is designed to protect the “protect the confidentiality, integrity and availability” of your data. What this means is that your business has a way to identity, assess risks, and has an ability to act on, in a defensive manner, to a known threat. First, you must conduct a risk assessment of your company and in response to that risk assessment, draft a written policies and procedures approved by your Board of Directors or other senior management to address information security, system and network security, and business continuity among other things.

Program

Each insurance carrier must appoint an individual tasked with enforcing their Cybersecurity policy, named the Chief Information Security Officer. This may be a member of your company or a third party, however if there is a third party, you must maintain direction and oversight of their activity to ensure compliance with the Regulations. The Chief Information Security Officer must file a report annually to your company’s senior management on your program and relevant cybersecurity risks.

The Department of Financial Services regulations stop short of outlining required cyber security technical requirements and instead instructs insurance carriers to set their own standards after their risk assessment. This makes compliance with the Regulation hard to clarify, as each carrier will have its own Program tailored to its cyber needs. However, the Regulation does instruct you to consider the following for your Program: annual penetration testing , bi-annual vulnerability assessments, an audit trail designed to detect and respond to threats maintained for five (5) years, written procedures, guidelines and standards that are updated to address new and emerging threats, multifactor authentication, data encryption of nonpublic information, periodic training and monitoring of staff and key personnel, and incident response plan in the event of a breach, and disposal of nonpublic information.

Reporting

As an insurance carrier, you are required to file a report annual with the Superintendent certifying that you are compliant with the new Cybersecurity regulations. The Department of Financial Services reserves the right to audit your company to ensure compliance with the new Regulations. This is why having a written policy and copies of your Risk Assessment, vulnerability testing, and assessment of your law firm is critical. Failure to maintain these records may result in hefty fines levied against your company.

As a covered entity under the regulation, your vendors – of which Jones Jones LLC would be considered – also must comply with the new Cybersecurity Regulations as well. Law firms and vendors are considered “third party service providers” and since they receive non-public information, you must only partner with a law firm who has put into place protective and industry-standard protections. This partnership is critical as in the event of a cyber-threat, the onus is placed on you, the insurance carrier, to ensure and maintain airtight security practices of your law firms. The risk of partnering with a law firm that is not prepared to comply with the Regulations is enormous, and under New York Banking Law could result in fines up to $75,000.00 per day.

What should you do? If you have not already done so, you must audit the security of your law firms to ensure compliance with these Regulations. It is recommended by the Department of Financial Services that you review your law firms’ cyber security practices regarding the following at bare minimum: their access to nonpublic information, whether they have multifactor authentication, how their data is encrypted at rest and in transit, and their notification policy in the event of a breach on behalf of the law firm.

As Jones Jones LLC takes all of its partnerships seriously, we have completely revamped our own cyber security practices to ensure your claims data is not only adequately protected, but also industry-leading.

Jones Jones’s cybersecurity infrastructure was modeled after such industry best practices as the NIST Cybersecurity Framework, NIST Special Publication 800-53, and 20 CIS Critical Security Controls.
Data in transit is encrypted across our network. Data at rest is encrypted using AES 256 encryption.
All Jones Jones emails are configured with TLS encryption.
Access to Jones Jones systems require two-factor authentication.
Jones Jones has its information systems tested for vulnerabilities on a weekly basis.
Jones Jones infrastructure is reviewed and maintained by a Cybersecurity committee.
And so much more.

Partnering with a law firm that does not maintain such stringent requirements is a risk in it of itself. Rest assured your partnership with Jones Jones is safe.

New York Workers’ Compensation Fact Sheet

10.04.2020

Are you an examiner that is looking for a quick reference? Are you a risk manager overseeing New York claims? Are you an employer addressing your first workers’ compensation case? Please look no further than the Jones Jones LLC New York Workers’ Compensation Fact Sheet.

New York Workers Compensation Fact Sheet 2022 edits

Download Here

NJ’s Presumptive COVID-19 Bill for Essential Workers: Everything You Need to Know

09.16.2020

On September 14, 2020, Governor Phil Murphy signed S.B 2380 into law. The new law allows for the shifting of the burden of proof for essential workers who contracted COVID-19 to the respondent. With this reform, a new rebuttable presumption now exists. The presumption is that an essential worker, working with the general public, who tests positive for COVID-19, developed the virus in the course of their employment. The reform is retroactive from March 9, 2020.

The Bill outlines covered essential workers into four different categories:

A public safety worker / first responder;
A healthcare worker (including transportation and social services);
Anyone working in close proximity to the public (this would include grocery and liquor store employees, bank/ financial service employees, residential services, and hotels);
Any other employee deemed an essential employee pursuant to the State of Emergency declarations.

Any state employee who was given the option of remote work, and refused it, would not be covered by the new law.

While the reform shifts the burden of proof from the petitioner to the respondent, the presumption is rebuttable.

Defense counsel can rebut the presumption by a preponderance of the evidence that the essential worker did not contract COVID-19 while working. In other words, the defense counsel would have to prove that it was more likely than not (greater than 50%) that the essential worker did not contract COVID-19 while at work.

What does this mean for you?

This makes the investigation of COVID-19 claims incredibly crucial. A defense counsel must be cognizant of the essential worker’s day- to-day life and other factors.

For example, some factors may include: if the essential worker was taking public transportation to work, if the worker was employed by more than one company, and whether or not the essential worker lived with anyone who had contracted COVID-19 prior to becoming sick. Questions regarding whether or not the essential worker self-quarantined or attended any social gatherings will also be helpful.

Your attorneys at Jones Jones LLC stand at the ready to navigate this new reform with you by thoroughly investigating the facts of the claim as well as the outside factors that could contribute to an essential worker contracting COVID-19.